V. Sambandam Vs. V. Natarajan - Court Judgment

V. Sambandam;brinda Ammal and ors., Minors by their Father and Next Friend V.M. Ratnasabhapathy

Respondent

V. Natarajan ;v. Sambandam

Excerpt: - .....if it commences a proceeding, it must be only in the form of a petition, but if it is made in a pending proceeding, it can be in the form of an application. consequently, the question for consideration is whether this request made under section 301 of the act can be said to be an application in a pending proceeding or whether it can be said to constitute the commencement of fresh proceedings under section 301 of the act. mr. anantarama mudaliar, learned counsel for the applicant, contends that there had been proceedings before this court previously, namely, t.o.s. no. 6 of 1966 in which probate was granted to the executors appointed under the will and consequently this request tinder section 301 can be said to be a prayer or request made in a pending proceeding. i am unable to accept.....

Judgment:ORDER

M.M. Ismail, J.

1. The purported application is claimed to have been filed under Section 301 of the Indian Succession Act by a beneficiary under a will for the removal of an executor appointed under the terms of the will. The question for consideration is one of procedure to be followed on the Original Side of this Court the applicant herein contending that Section 301 authorises him to move this Court for the removal of an executor by means of an application as distinct from an original petition. On the other hand, the office takes the view, based upon Order 2, Rule 1 and Order 14, Rule 1 of the Rules of the High Court, 1956, that when a prayer is made under Section 301 of the Indian Succession Act, it should be made in the form of a petition only and not by an application, because it constitutes commencement of fresh proceedings, in relation to the subject-matter of the request.

2. Mr. Anantarama Mudaliar, learned Counsel for the applicant, strongly relies on the use of the word ' Application ' in Section 301 of the Act and contends that whenever the statute contemplated a petition, it used the word ' petition ' and since the word ' petition ' is not present in Section 301 and only the expression, ' application ' is present in this section, he is entitled to come by way of an application alone as distinct from an original petition for the purpose of a prayer which can be obtained under Section 301 of the Act. It is necessary to refer to Section 301. That section says:

The High Court may, on application made to it, suspend, remove or discharge any private executor or administrator and provide for the succession of another person to the office of any such executor or administrator who may cease to hold office, and the vesting in such successor of any property belonging to the estate.

Section 302 states:

Where probate or letters of administration in respect of any estate has or have been granted under this Act, the High Court may, on application made to it, give to the executor or administrator any general or special directions in regard to the estate or in regard to the administration thereof.

Two other sections on which reliance was placed by the learned Counsel are Sections 192 and 193.

Section 192 (1) is:

If any person dies leaving property, movable or immovable, any person claiming a right by succession thereto, or to any portion thereof, may make application to the District Judge of the District where any part of the property is found or situate for relief, either after actual possession has been taken by another person, or when forcible means of seizing possession are apprehended.

Section 193 states:

The District Judge to whom such application is made shall, in the first place, examine the applicant on oath, and may make such further inquiry, if any, as he thinks necessary as to whether there is sufficient ground for believing that the party in possession or taking forcible means for seizing possession has no lawful title, and that the applicant, or the person on whose behalf he applies, is really entitled and is likely to be materially prejudiced if left to the ordinary remedy of a suit, and that the application is made bona fide.

The question for consideration is whether the expression, ' application ' occurring in these sections has been used in the sense contended for by the learned Counsel, namely, as distinct and opposed to a petition. In my opinion, the expression,, ' application ' has not been used in the sense contended for by the applicant in these sections. Sections 270 and 276 throw a flood of light on this point. Section 270 of the Act provides:

Probate of the will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, movable or immovable, within the jurisdiction of the Judge.

Section 276 (1) of the Act is:

Application for probate or for letters of administration, with the will annexed,, shall 'be made by a petition distinctly written in English or in the language in ordinary use in proceedings before the Court in which the application is made, with the will or, in the case mentioned in Sections 237, 238 and 239, a copy, a draft, or statement of the contents thereof annexed, and stating....

If the meaning contended for by the learned Counsel is to be given to the word ' application ' occurring in Section 276, nothing but confusion will be the result. The section uses both the expressions ' application ' and ' a petition ' and also uses the expression, ' before the Court in which the application is made.' From the language of the section, it is absolutely clear that the expression ' application ' has not been used as a formal proceeding as distinct from a petition, but has been used merely to refer to the act of requesting or act of applying or act of petitioning. The meaning of the word, ' application ' as given in Ramanatha Iyer's Law Lexicon is 'a petition to Court; a request to a Judicial Officer; the act of making or preferring a request.' The Concise Oxford Dictionary also gives the following meanings to the word ' application ': ' Making of a request; request made.' Therefore, when Section 301 of the Act uses the word ' application,' certainly it was not referring. to the procedural aspect of whether it should be in the form of an application as distinct from a form of petition and this is made amply clear, when Sections 270 and 276 use the expression 'a petition', while Sections 301 and 302 and 192 and 193 use the expression ' application ' without the indefinite article ' an ' preceding it. The absence of the indefinite article ' an ' is crucial in determining what exactly the sense in which the expression ' application ' has been used in Section 301. For the reasons mentioned above, I am of the opinion that the contention of the learned Counsel for the applicant that the word 'application' occurring in Section 301 has been used in the sense of ' an application,' as distinct from ' a petition ,' for the purpose of procedural aspect is not maintainable.

3. That being the case, the matter has to be governed only by the Original Side Rules of this Court. As far as the Original Side Rules are concerned, Order 2, Rule 1 states:

A suit shall be commenced by presenting a plaint to the Court or such officer as the Chief Justice appoints in this behalf, all other proceedings shall be commenced by petition unless otherwise provided for by these rules or by rules framed under any special Act.

Order 14, Rule 1, states:

All applications in a suit or matter shall be made to a Judge or to the Master as provided for by these rules upon a summons in Form No. 15 issued by such officer as may be appointed for the purpose.

Consequently in relation to the question before me, whether the particular prayer under Section 301 should be made to this Court in the form of ' an application ' or ' a petition ' will have to be governed by the procedural rules of this Court, and according to the procedural rules of this Court, if it commences a proceeding, it must be only in the form of a petition, but if it is made in a pending proceeding, it can be in the form of an application. Consequently, the question for consideration is whether this request made under Section 301 of the Act can be said to be an application in a pending proceeding or whether it can be said to constitute the commencement of fresh proceedings under Section 301 of the Act. Mr. Anantarama Mudaliar, learned Counsel for the applicant, contends that there had been proceedings before this Court previously, namely, T.O.S. No. 6 of 1966 in which probate was granted to the executors appointed under the will and consequently this request tinder Section 301 can be said to be a prayer or request made in a pending proceeding. I am unable to accept this contention as well. Mr. Anantarama Mudaliar is not able to satisfy me, how the request for removal of an executor can be said to be an interlocutory application or application made in a pending proceeding. The learned Counsel drew my attention to Sections 302 and 307 of the Indian Succession Act under the former of which provision has been made for the giving of general or special directions by the Court to an executor or administrator, where probate or letters of administration in respect of any estate has or have been granted. So also Section 307 provides that an executor or administrator has power to dispose of the property of the deceased vested in him under Section 211 either wholly or in part, in such manner as he may think fit, subject to the provisions of Sub-section (2). Sub-section (2) enables the administrator to obtain permission of the Court for doing certain things. Therefore, basing himself on these two sections, the learned Counsel contends that if applications under those sections can be considered to be applications in pending proceedings equally an application under Section 301 must also be considered to be one made in a pending proceeding. I am unable to accept this argument for the simple reason that Sections 302 and 307 contemplate the continuance of the executor or administrator to whom probate or letters of .administration was granted by the Court and his obtaining permission of the Court or he being issued directions by the Court in relation to the administration or management of the estate and not for the removal of himself. The removal is separately and expressly provided for only under Section 301. There is one other reason for the conclusion that a request made under Section 301 cannot be said to be one made in a pending proceeding. Mr. Anantarama Mudaliar has pointed out that in relation to a will executed in the mofussil in respect of properties situate in the mofussil, under the provisions of the Succession Act, there is no need to obtain a probate; in such a case if a request is to be made to the High Court under section .301, under which the High Court is the sole forum, it cannot be said to be in any pending proceeding; it must necessarily constitute the commencement of fresh proceedings, on the other hand, if in relation to a will executed within the original jurisdiction of this Court or dealing with the property situate within such jurisdiction, a probate has already been granted, then the request under Section 301 can be taken to be a request made or application made in a pending proceeding. I am unable to accept this type of interpretation of Section 301, which is made to depend upon whether the will in question is one executed in the mofussil or within the jurisdiction of this Court. Section 301 can have only the same application whether the will is one executed in the mofussil or in the City of Madras, without intending any distinction with reference to the procedural aspect.

4. Under these circumstances, I am unable to accept the argument advanced by the learned Counsel that the request made by him under Section 301 in the particular case must be treated as an interlocutory application in a pending proceeding, namely, T. O. S. No. 6 of 1966. Probably one simple answer to this submission will be that T. O. S. No. 6 of 1966 is no longer pending on the file of this Court, having come to an end with the grant of the probate in favour of the executor concerned.

5. For these reasons, I hold that the present request made under Section 301 of the Indian Succession Act in the form of an application is not maintainable and it has to be only in the form of a petition.